4. Safeguarding respect for victims’ human rights

4.1. The consultation document describes the Scottish Government’s ambition to safeguard victims’ rights to dignity and outlines existing approaches, standards, frameworks and legislation that underpin respect for dignity. These include:

That no forensic examinations of victims of sexual offences take place in police settings.

The human rights outcome in Scotland’s national performance framework.

Respect for dignity enshrined in legislation such as the Patient Rights (Scotland) Act 2011 and the Social Security (Scotland) Act 2018.

The intention to implement section 9 of the Victims and Witnesses (Scotland) Act 2014 which provides for victims of sexual offences who have made a police report to request the gender of the medical examiner.

Having regard to all human rights set out in international human rights treaties and facilitating the participation of people affected by policy changes.

Responses to question five: safeguarding rights to dignity

4.2. Respondents were invited to express views on how the legislation might help safeguard victims’ rights, by responding to the following question:

Question 5: How might legislation help safeguard victims’ rights to respect for their dignity?

Overview

4.3. This open-ended question generated comments from over three-quarters of the consultation respondents (42 out of 53). A range of views were identified within the responses. These included: reflections on the value of trauma-informed delivery, wider discussions on safeguarding rights, and considerations in relation to children and young people.

Trauma-informed delivery

4.4. Twenty-one respondents reflected on trauma-informed delivery as a means to safeguard victims’ rights to respect and dignity. Aspects of these discussions are described in more detail below.

4.5. Sixteen respondents suggested that allowing the victim to choose the sex of the practitioner would help to safeguard victim’s rights; ten of these respondents specifically highlighted this level of choice will contribute to a more trauma-informed delivery model of FMS. We highlight that many described choice in the sex of the examiner (typically, the ability to choose a female practitioner) as one the most important elements of trauma-informed delivery, and therefore a crucial aspect of a rights-based approach. The following points were raised in these discussions:

Four respondents suggested the introduction of forensic nurse examiners in Scotland would facilitate victims' rights to choose the sex of their examiner.

Four respondents called for adequate staff resources to create the means to provide choice in the sex of forensic medical practitioners.

Other singular responses are available in Appendix 3, including one which has been signposted to SG for consideration discussing the experiences of LGBTI victims.

4.6. Eight respondents described other aspects of a trauma-informed approach. These include consistent standards of service, making sure victims are informed and supported throughout their experience, ensuring the examination space is private and comfortable, and that services are delivered when needed. These respondents emphasized that FMS should not add to the trauma already experienced by the victim

4.7. Four respondents observed the need for aftercare and support following the examination. They suggested models of support, including advocacy workers or connection with relevant agencies.

4.8. Three respondents advocated for specific models of trauma-informed delivery. One suggested The New Pathways model in Wales, noting it introduces the role of an advocacy worker from the outset of criminal proceedings, and collaboration with a victims’ support organisation to provide ongoing support throughout the process. Another respondent expressed support for a multi-agency model; one called for the creation of sexual assault referral centres, to provide a holistic approach to long term recovery and offer a range of services to support the needs of the victim. Another described a model of rigorous recruitment processes to ensure those conducting examinations hold progressive views about sexual violence, comprehensive sensitivity training, and on-going monitoring of victims’ experience of the process.

4.9. Three respondents reflected on the location of services and access to these in relation to ensuring a trauma-informed delivery. Two of these discussed the experiences of victims living in rural and remote areas who have to travel long distances to access FMS. One observed that victims are often accompanied by police, asked to wear the same clothes as worn when they were assaulted, which can contribute to further trauma. Another made a more general expression of support for the proposals to place a statutory duty on health boards to deliver forensic examinations, noting all victims should have access to such support regardless of geographical location.

4.10. Two respondents reflected that examinations held in police stations or settings could further contribute to the trauma of the victim; with one discussing the importance of FMS delivery in healthcare settings to ensure the focus remains on the wellbeing of the victim. One called for improved training for police and court staff on the medical consequences of sexual assault.

4.11. One respondent called for a supportive and empathetic response to victims be a feature of the model of service delivery, noting that professional culture is as important as the statutory duty.

4.12. Another noted that ‘any digital recording of genital images as part of an examination… should be in line with guidance published by the Faculty of Forensic and Legal medicine (FFLM)’

Wider discussions on safeguarding victims’ rights

4.13. A range of points were shared by respondents in their reflections on safeguarding victims’ rights. Many of these related to the potential for the legislation to play a role in enacting rights to justice or engagement with the justice process, should victims decide to involve the police. Some examples are discussed in Appendix 3.

4.14. Five respondents called for assurances that victims who self-refer will receive the same services and be entitled to the same rights as those who access services as a result of a police referral. Two further singular responses are shared in Appendix 3.

Children and young people

4.15. Four respondents referenced children and young people in their response to question five. These comments are provided in Appendix 3 but included the need for a joined-up approach including a pediatrician and a practitioner during an examination process, choosing the sex of an examiner, a discussion of trauma-informed healthcare being a route to access appropriate support and calls for more research into you peoples’ preferences.

Other views

4.16. Two respondents suggested that there are challenges when it comes to legislating to ensure respect and dignity. One said, ‘it is difficult to legislate for "respect": what you can do is specify acceptable (and observable) good practice, behaviours and communication’. The other observed ‘I am not convinced that the law has any place in this area’.

4.17. Conversely, another respondent observed ‘individuals who have experienced harm should be treated with respect and dignity at all stages of the process… treating people with dignity and respect can be done whilst fulfilling statutory functions in relation to data collection and retention’.

A sample of illustrative quotes that typify the themes identified in this section:

“Forensic evidence could be made collected and held until the victim is ready to decide whether to take legal action.” (Individual, anonymous)

“We would envisage any legislation being principle-based, reflecting human rights including the values of the UN Convention on the Rights of the Child (UNCRC) and the UN Convention on the Rights of Persons with Disabilities (UNCRPD). The law should also reflect that victims are generally able to make informed decisions for themselves, and where this is not the case the law should make clear how decisions should be made, drawing on the approach of the UNCRPD – that the will and preferences of adults are included and reflected in decisions, and that there should be support for decision making.” (Organisation, anonymous)

“With regard to question 5, SCLD believes giving full legislative powers to health boards may increase the likelihood of important evidence being gathered which could become vital to later criminal prosecutions. This will support a right to justice as outlined under Article 13 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).” (Scottish Commission for Learning Disability)

Responses to question six: potential impact on human rights

4.18. The consultation document notes that the Scottish Government proposes to take a human-rights based approach to the development of legislation to improve forensic medical services for victims of rape and sexual assault. It explains that this includes regard for human rights treaties, facilitating the participation of people affected by policy changes and moving beyond the civil and political rights to encompass economic, social and cultural rights.

4.19. Respondents were invited to express views on how the legislation might have an impact on human rights, by responding to the following question:

Question 6: More generally, do you have any views on potential impacts of the proposals in the Chapters of this paper on human rights (including economic, social and cultural rights such as the right to the highest attainable standard of physical and mental health)?

Overview

4.20. This open-ended question generated comments from over half of the consultation respondents (30 out of 53). A range of views were identified within these, including:

Twenty-four responses which contained an additional suggestion, example or consideration for the Scottish Government.

Six respondents reiterated their support for a human rights approach, explaining why they believe the proposed legislation will have a positive impact on victims.

Vulnerable Groups

4.21. Nine respondents referenced vulnerable groups in response to this question. Most of these discussed vulnerable groups in relation to adults with disabilities (physical disabilities, profound and multiple learning disabilities (PMLD)) and the specific risks, issues and challenges that they can encounter.

4.22. Seven respondents signposted the Scottish Government to specific reference points. These are listed in Appendix 4.

4.23. Two focused on informed decision-making, with one highlighting confidentiality issues concerning women with disabilities. They suggested that supported decision-making can lead to a lack of autonomy when it comes to a person with disabilities deciding when and if to take legal action in a case of rape or sexual assault. To address this, they called for practitioner training around Adult Support and Protection regarding decision-making. Another respondent gave a detailed discussion about the importance of ensuring rights are respected by providing accessible information to inform their decisions.

General reflections on the proposals

4.24. Eight respondents shared general reflections on the proposals in response to this question. Five of these praised the inclusion of trauma-informed practices and three iterated their support with the intention to uphold human rights for those who have experienced sexual violence.

Mention of health boards in the discussion on rights

4.25. Five respondents discussed health boards and FMS in their response to the question on wider human rights.

Two suggested that intentions behind the legislation extend beyond FMS and called for responsibility be extended to follow-up care providers to ensure the highest standard of mental and physical health.

4.26. Four respondents referenced minority groups in relation to equality and human rights. These comments are summarised in Appendix 3 and included two reflecting on the importance of equal rights for LGBTI communities, one discussing the experience of transgender women and one discussing the importance of including the lived experience of victims from diverse backgrounds.

Accessibility

4.27. Three respondents mentioned accessibility, in relation to location or geography. These comments are discussed in Appendix 3.

Other Views

4.28. A small number of comments did not align within the groupings described above. These are summarised in Appendix 3.

A sample of illustrative quotes that typify the themes identified in this section:

“The proposals will have a positive impact on those who have experienced sexual violence to access relevant healthcare and support as well as access to justice, if they do so choose to seek it.” (NHS Highland)

“Human-rights based approach must underpin the delivery of care across Scotland. The responsibility for this work must extend beyond territorial Health Boards and should include all commissioned services, psychological support services and incorporated in law.” (Glasgow Violence Against Women Partnership)

“Improving patient access to services is a key human right. At present, citizens do not really have an equity of healthcare or an equivalence of access to the right evidence-based care following rape and sexual assault. NHS would allow this area of care to be accessible to people from all backgrounds who may have dual diagnoses, and this would NOT be seen as an impediment to the case. Rape is an outlier at present regarding the social determinants of health. Sexual violence is now considered to be a volume crime and takes up a majority of Court time in Scotland. However, the equivalent response in healthcare is not writ large. Taking responsibility would allow public health and dedicated services to address the impact of complex sexual violence on individuals, families and society.” (Individual, anonymous)